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What a difference an ocean makes.

I’m on holiday here in Singapore, where illicit drugs are taken very seriously. Cannabis is a Class I, Category A substance. Being caught with certain quantities of cannabis (as well as many other substances) can result in the death penalty. Lesser amounts will result in caning (several dozen lashes) or lengthy imprisonment.

Ouch.

But in a parallel universe, the California Workers’ Compenstion Appeals Board is struggling with the question of how to handle “medical marijuana”.

The case is Christopher Cockrell v. Farmers Insurance ( I have a pdf of the March 2015 panel decision by Commissioners Lowe, Sweeney and Zalewski at the close of this post). In September 2014 the WCAB had issued a panel decision remanding Cockrell’s claim back to the trial judge. For purposes of reference I’ll call them Cockrell I and Cockrell II.

Cockrell was seeking reimbursement for self-procured medically recommended marijuana that he claimed he was using as a treatment for his work injury.

The focus of both WCAB panel decisions has been on the statutory interpretation of California’s medical marijuana law, particularly California Health and Safety Code Section 11362.785(d). That section  states that, “Nothing in this article [Medical Marijuana Program] shall require a governmental, private, or any other health insurance provider or health care service plan to be liable for any claim for reimbursement for the medical use of marijuana.”

All of this is within the context of the “Compassionate Use Act of 1996” set forth in Health & Safety Code Section 11362.5.

The workers’ comp judge had initially found that 11362.785(d) and Labor Code 4600.35 did not bar the reimbursement claim. The insurer was ordered to reimburse Cockrell for his self-procured cannabis costs.

After the remand ordered in Cockrell I, the trial judge determined that the workers’ comp insurer was not a “health service plan” within the meaning of 11362.785(d). In Cockrell II the WCAB panel declined to address that issue.

Cockrell II remands the issue back to the WCJ to determine if the workers’ comp insurer is a “health insurance provider” within the meaning of 11362.785(d).

If the comp carrier is  a “health insurance provider” or a “health service plan” then Cockrell’s claim for reimbursement may be nixed by the Health and Safety Code statute.

Moreover, in most cases UR and IMR would not support “medical marijuana” as it is not addressed in the MTUS. Neither Cockrell I or Cockrell II discuss UR and IMR issues regarding Cockrell’s quest to have medical marijuana covered.

But there are a significant number of instances where UR is not timely done or claims are denied altogether and then accepted, so how California deals with medical marijuana in workers’ comp is a significant issue.

In Cockrell II the board addresses the issues as follows:

“The Medical Marijuana Program does not appear to specifically define the term”health insurance provider'”. “Health insurance” is not one of the classes of insurance in the Insurance Code. (Ins. Code, Sec. 100) It appears that non-occupational health insurance is a type of disability insurance. (see, e.g., Ins. Code,  10785). Although for purposes of the Insurance Code the term “health insurance” does not include “insurance arising out of a workers’ compensation or similar law” (Ins.. Code Sec. 106), we note that Labor Code section 4600 refers to “health care coverage for nonoccupational injuries or illnesses” (Lab. Code, Sec. 4600, subd. (d)(l)). The fact that the Legislature felt the need to qualify “health care coverage” with “for occupational injuries or illnesses” may signify that coverage for occupational injuries or illnesses also constitutes “health care coverage”.  Similarly, the fact that the term “health insurance” specifically excludes workers’ compensation in the Insurance Code may signify that health insurance includes workers’ compensation insurance when there is no express statutory exclusion. We take no position on this issue.”

The WCAB instructed the WCJ on remand to “analyze whether there is any rational basis for treating occupational and nonoccupational insurers differently with regard to reimbursement for medical marijuana” noting that “We take no position on this issue”.

The Compassionate Use Act of 1996 included the following language:

“To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.”

So is there some rational basis to support California insurers reimbursing for medical marijuana if group health providers are not required to do so?
I'd argue no, unless treatment guidelines support it. We've already 
seen widespread negative effects of expanded opioid use in comp.
Courts and policymakers should be wary of allowing widespread use of 
medical marijuana in the comp system until further protocols are 
developed.
That's just me.
Singapore may be going too far. But California's comp system should becareful on this issue.
Here is the pdf of the board panel decision Christopher Cockrell v. Farmers Insurance:

WorkersCompMedicalMarijuanaCockrellV.Farmers

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Julius Young

www.boxerlaw.com

www.workerscompzone.com

Julius Young

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